“If one assumes that NZ First fail to gain the threshold (which they failed to do when polling 4.5% pre the 2008 NZ Election). It is most likely with that sort of breakdown that National would again form Government with the support of the Maori Party, ACT NZ and United Future.…If NZ First did gain the threshold convincingly (as they did in 2011 when our final pre-election poll showed NZ First on 6.5%), they would likely be a part of a possible left-leaning alliance Government.The simple fact is that results like these would create a close election, although at 44% we believe the National vote is high enough for it to be returned to Government. As the party with clearly the highest primary vote it would have first call on trying to form Government under convention.”

Hang on again. This seems even more confusing:

First, the narrative is apparently not based on the translation of the poll results into seats in the House. It’s based on the possibility of different results being achieved. Sure, polls always have a margin of error (here, for example, Julian indicated the margin of error for NZF support was around 1.4%).

However, I thought it was pretty standard for polls to be interpreted, in the first instance, based on the snap-shot of support at the time.

Of course, that might not translate into outcomes at an actual election. But we appreciate that.

Secondly, the reference to some convention that “the party with clearly the highest primary vote it would have first call on trying to form Government” is just plain wrong. The highest polling party does not have any suggest right or first call.

The point has been clarified a number of times in the MMP era, even though to-date the highest polling party has so far been in a position to garner majority support for a governing coalition.

For example, the Governor-General Sir Michael Hardie-Boys said in 1997:

"In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority."

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.